IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: APRIL 27, 2023 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2021-SC-0550-MR
BARRY ELLIOTT APPELLANT
ON APPEAL FROM LOGAN CIRCUIT COURT V. HONORABLE JOE W HENDRICKS, JR., JUDGE NO. 19-CR-00348
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
The Logan Circuit Court held a one-day jury trial of Appellant Barry
Elliott on charges of possession of a firearm by a convicted felon and being a
persistent felony offender. Over the course of that single-day trial the
Commonwealth made at least ten separate references to the jury regarding
Elliott’s possession of drugs and related paraphernalia at the time of his arrest,
despite the fact he was not currently on trial for those offenses. The
Commonwealth also made five separate references explicitly stating or
suggesting that Elliott was a drug dealer. The Commonwealth further made at
least six references to other charges pending against Elliott that also were not
at issue in the trial. The jury convicted Elliott of possession of a firearm by a convicted felon
and being a persistent felony offender and recommended the maximum legal
enhanced sentence of twenty years. The trial court sentenced in conformity
with that recommendation. Elliott now appeals to this Court as a matter of
right. KY. CONST. § 110(2)(b).
Following a careful review, we conclude the Commonwealth’s numerous
references to Elliott’s possession of drugs and related paraphernalia, to his
alleged occupation as a drug dealer, and to the other charges pending against
him violated KRE1 404(b)’s prohibition against the admission of other crimes,
wrongs, or acts for the purpose of proving character to show action in
conformity therewith. We further conclude this was not harmless error and
therefore reverse and remand for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
The South Central Kentucky Drug Task Force conducted a drug
investigation that revealed reason to believe Appellant Barry Elliott was
trafficking drugs from a residence in Logan County. On September 24, 2019,
the Task Force obtained a search warrant permitting a search of that residence
for illegal drugs and other materials related to drug activity and drug
trafficking.
In the course of executing the search warrant, the Task Force discovered
Elliott in the residence. In the same room with Elliott were alleged
methamphetamine, alleged marijuana, and a loaded and chambered shotgun.
1 Kentucky Rule of Evidence 2 Elliott was arrested and ultimately indicted on charges of first-degree
trafficking in a controlled substance, first-degree possession of a controlled
substance, possession of marijuana, possession of drug paraphernalia,
possession of a firearm by a convicted felon, and being a first-degree persistent
felony offender (“PFO”).
The trial court properly severed the firearm and PFO charges from the
remaining drug-related charges arising from Elliott’s arrest. The
Commonwealth proceeded with trial on the firearm and PFO charges. Though
the drug-related charges therefore were not at issue, the Commonwealth
nonetheless made frequent references throughout the one-day trial to Elliott’s
possession of drugs and drug paraphernalia at the time of his arrest, to his
alleged occupation as a drug dealer, and to the other charges pending against
him. In its opening statement, the Commonwealth told the jury it would see
body cam footage from the search showing alleged drugs and other
paraphernalia on a table and that Elliott had been arrested on charges other
than those at issue in the trial. Witness testimony further referenced the drugs
found during execution of the search warrant. Task Force Agent Fox informed
the jury that during the search law enforcement found methamphetamine,
digital scales commonly used to weigh drugs, and plastic bags consistent with
the storage of illegal drugs. The jury also observed body cam footage of the
search of the residence in which law enforcement noted the presence of illegal
drugs. The Commonwealth also referenced the drugs found with Elliott at least
three times during its closing argument and further stated “we don’t want
3 people who are drug dealers . . . legally walking around with firearms,” and
that “if you’re a drug dealer you don’t want someone taking . . . your drugs.”
Agent Fox also testified to an incident following Elliott’s arrest in which
Elliott asked Agent Fox to list the charges against him. Agent Fox testified that
he then listed the “numerous charges” for Elliott. Defense counsel objected
and moved for a mistrial, contending the proceedings had “turned into a
trafficking trial.” The trial court denied the motion for a mistrial. Defense
counsel then requested an admonition to the jury regarding the other-charges
evidence, which the trial court provided.2 After the admonition, Agent Fox
testified that when he informed Elliott one of the charges against him was
possession of a firearm by a convicted felon, Elliott stated he was keeping the
gun for his uncle.
The jury convicted Elliott of the firearm and PFO charges and
recommended a sentence of five years enhanced to the legal maximum of
twenty years. Elliott filed a motion for a new trial alleging he was prejudiced by
admission of evidence regarding the drug-related charges. The trial court
denied that motion and sentenced in conformity with the jury’s
recommendation. Elliott now appeals.
ANALYSIS
Elliott argues that the trial court’s admission of numerous drug-related
statements and evidence at trial violated KRE 404(b). Elliott stated timely
objections to the admission of such evidence and thus his allegation of error is
2 See supra Part III. 4 preserved.3 KRE 103(a)(1); RCr4 9.22; Daniel v. Commonwealth, 607 S.W.3d
626, 632 (Ky. 2020) (noting that alleged error “was properly preserved for our
review by [appellant’s] objection to the evidence on . . . KRE 404(b) grounds.”).
Under KRE 404(b), evidence of other crimes, wrongs, or acts “is not
admissible to prove the character of a person in order to show action in
conformity therewith.” As we have previously noted,
[t]he reasons for the rule are salutary. Ordinarily, such evidence does not tend to establish the commission of the crime. It tends instead to influence the jury, and the resulting prejudice often outweighs its probative value. Ultimate fairness mandates that an accused be tried only for the particular crime for which he is charged. An accused is entitled to be tried for one offense at a time, and evidence must be confined to that offense. The rule is based on the fundamental demands of justice and fair play.
O’Bryan v. Commonwealth, 634 S.W.2d 153, 156 (Ky. 1982) (citation omitted).5
Evidence of other crimes, wrongs, or acts may be admissible, however,
for another purpose, such as proving “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” KRE 404(b)(1).
3 Four of the thirty-seven drug-related references at trial cited by Elliott in his brief involve introduction of evidence of his prior conviction for trafficking in cocaine. Elliott did not object to the admission of that particular evidence at trial, perhaps for the obvious reason that a prior felony conviction was an essential element of the Commonwealth’s proof for possession of a firearm by a convicted felon. See Kentucky Revised Statutes (“KRS”) 527.040. Elliott also presents no specific written argument of error as to the admission of that evidence in his briefing to this Court. In any event, we note that the admission of evidence of his prior felony conviction was not erroneous given that such evidence was an essential element of the Commonwealth’s proof on the charge of possession of a firearm by a convicted felon. 4 Kentucky Rules of Criminal Procedure 5 Though O’Bryan predates our adoption of the current Kentucky Rules of
Evidence, its statement of the purpose of excluding evidence of other crimes, wrongs, or acts is in accord with the purposes of KRE 404(b). Clark v. Commonwealth, 223 S.W.3d 90, 96 n.12 (Ky. 2007). 5 Such evidence may also be admissible “[i]f so inextricably intertwined with
other evidence essential to the case that separation of the two (2) could not be
accomplished without serious adverse effect on the offering party.” KRE
404(b)(2). KRE 404(b) is “‘exclusionary in nature’” and thus these exceptions
“‘should be ‘closely watched and strictly enforced’” given their “‘dangerous
quality and prejudicial consequences.’” Graves v. Commonwealth, 384 S.W.3d
144, 147-48 (Ky. 2012) (quoting Clark, 223 S.W.3d at 96). We review a trial
court’s decision to admit evidence under KRE 404(b) for abuse of discretion.
Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007).
I. The trial court did not err in admitting evidence that law enforcement discovered the charged offense in the course of executing a search warrant obtained in connection with a drug investigation.
Elliott first contends the trial court erred in admitting evidence that law
enforcement discovered the firearm at issue while executing a search warrant
obtained in connection with the Drug Task Force investigation. We disagree.
As noted above, KRE 404(b)(2) permits the admission of evidence of other
crimes, wrongs, or acts where they are so inextricably intertwined with
evidence essential to the crime charged that separating the two would result in
serious adverse effect on the offering party. One such circumstance arises
where evidence of the other crime, wrong, or act is necessary to allow the
Commonwealth to “paint an accurate picture” of the context and events
surrounding the charged offense:
“One of the accepted bases for the admissibility of evidence of other crimes arises when such evidence ‘furnishes part of the context of the crime’ or is necessary to a ‘full presentation’ of the case, or is
6 so intimately connected with and explanatory of the crime charged against the defendant and is so much a part of the setting of the case and its ‘environment’ that its proof is appropriate in order ‘to complete the story of the crime on trial by proving its immediate context or the “res gestae”’ or the ‘uncharged offense is “so linked together in point of time and circumstances with the crime charged that one cannot be fully shown without proving the other . . . .” [and is thus] part of the res gestae of the crime charged.’”
Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012) (quoting Norton v.
Commonwealth, 890 S.W.2d 632, 638 (Ky. App. 1994)). In other words, “the
Kentucky Rules of Evidence are ‘intended to be flexible enough to permit the
prosecution to present a complete, un-fragmented, un-artificial picture of the
crime committed by the defendant, including necessary context, background
and perspective.’” Id. at 328 (quoting Major v. Commonwealth, 177 S.W.3d 700,
708 (Ky. 2005)).
We have previously held that consistent with KRE 404(b)(2)’s provision
for the admission of evidence to provide necessary background and context, the
Commonwealth may present proof that the defendant was the subject of a drug
investigation arising from other crimes, wrongs, or acts to explain why law
enforcement focused its attention upon the defendant. Peyton v.
Commonwealth, 253 S.W.3d 504, 516 (Ky. 2008) (“[T]estimony explaining why a
defendant had become a suspect in a drug investigation is relevant . . . to avoid
any implication that the defendant was unfairly singled out in the drug sting
operation and to explain why the defendant was targeted.”); see also Gordon v.
Commonwealth, 916 S.W.2d 176, 179 (Ky. 1995) (“[I]t was not improper to
admit evidence that appellant had become a suspect in the county-wide drug
investigation. This avoided any implication that appellant had been unfairly 7 singled out . . . .”). We have similarly held that the Commonwealth may
present proof of warrants relating to other crimes, wrongs, or acts where the
execution of those warrants provides the context in which law enforcement
discovered the charged offense. Kerr v. Commonwealth, 400 S.W.3d 250, 262-
63 (Ky. 2013) (“The existence of the arrest warrants here was necessary to an
adequate understanding of the context of the officers’ conduct . . . [and]
provided the setting and context of the discovery of the crime. Excluding the
reason why police were observing [the defendant] and why they arrested him,
thereby gaining access to the contraband, would have left the jury with an
incomplete and fragmented picture of the circumstances surrounding how the
[charged offense] was discovered.”).
Here, we find no error in the trial court’s admission of evidence that
Elliott was the subject of a Drug Task Force investigation or that the firearm
offense was discovered in the execution of a search warrant resulting from that
investigation. That Elliott was the subject of a drug investigation provided the
jury with necessary context to understand why law enforcement focused its
attention upon him, thereby avoiding the creation of an inaccurate
misperception that law enforcement lacked a basis for doing so. Evidence that
law enforcement executed a search warrant resulting from the drug
investigation similarly explained to the jury how law enforcement discovered
the firearm at issue. Accordingly, because evidence of the drug investigation
and resulting search warrant was necessary to allow the Commonwealth to
“paint an accurate picture” of the background and context of the charged
8 offense of possession of a firearm by a convicted felon, the trial court did not
abuse its discretion in admitting that evidence.
II. The trial court abused its discretion in admitting voluminous evidence that Elliott was in possession of drugs and related paraphernalia when arrested and that Elliott was a drug dealer.
While we therefore discern no error in the trial court’s admission of
evidence of the drug investigation and resulting search warrant, we conclude
the trial court abused its discretion in admitting voluminous evidence that
Elliott possessed drugs and related paraphernalia at the time of his arrest and
that he was a drug dealer. We note that, unlike the Drug Task Force
investigation and search warrant, evidence of Elliott’s alleged occupation as a
drug dealer and possession of drugs and paraphernalia at the time of arrest
was not admissible under KRE 404(b)(2). First, such evidence was not
necessary to explain why law enforcement focused on Elliott or how it
discovered the charged firearm offense. Indeed, evidence of the drug
investigation and search warrant already accomplished that purpose. Second,
suppression of evidence of Elliott’s possession of drugs and occupation as a
drug dealer would not have necessarily also resulted in suppression of evidence
relating to the firearm charge. See Metcalf v. Commonwealth, 158 S.W.3d 740,
743-44 (Ky. 2005) (noting that evidence is “inextricably intertwined” when it
would be necessary to suppress evidence relating to the charged offense in
order to exclude evidence of the other crime, wrong, or act). To the contrary,
the trial court could have excluded all reference to Elliott’s possession of the
drugs and related paraphernalia and alleged occupation as a drug dealer
9 without limiting proof that Elliott possessed a firearm while he was a convicted
felon. As such, the evidence was not inextricably intertwined with the charged
offense so as to warrant admission under KRE 404(b)(2).
We therefore must consider whether evidence that Elliott possessed
drugs and was a drug dealer was nonetheless admissible under KRE 404(b)(1).
In determining whether to admit evidence of other crimes, wrongs, or acts
under KRE 404(b), a trial court must consider the three factors of relevance,
probativeness, and prejudice as set forth in Bell v. Commonwealth, 875 S.W.2d
882 (Ky. 1994). That is, the trial court must consider 1) whether the proffered
evidence is relevant for some purpose other than to prove the defendant’s
criminal disposition, 2) whether evidence of the other crime, wrong, or act is
sufficiently probative of its commission by the defendant, and 3) whether the
potential prejudice from admission of the proffered evidence substantially
outweighs its probative value. Id. at 889-91. In considering these factors, the
trial court “must apply [KRE 404(b)] cautiously, with an eye towards
eliminating evidence which is relevant only as proof of an accused’s propensity
to commit a certain type of crime.” Id. at 889.
The first Bell factor of relevance requires a trial court to determine
whether admission of the evidence of other crimes, wrongs, or acts would be in
furtherance of one of the permissible purposes under KRE 404(b)(1).
Southworth v. Commonwealth, 435 S.W.3d 32, 49 (Ky. 2014). Here, evidence of
Elliott’s possession of drugs and related paraphernalia and alleged occupation
as a drug dealer was relevant because it established a motive for his unlawful
10 possession of the firearm. More particularly, Elliott’s proximity to drugs and
related paraphernalia and alleged occupation as a drug dealer had a tendency
to establish a motive for his possession of the firearm, namely to protect
himself from those who might seek to steal the drugs or trafficking-related
money. Thus, the evidence was relevant for some purpose other than
establishing criminal disposition, namely to establish that Elliott had a motive
to possess the firearm despite being a convicted felon. See Webb, 387 S.W.3d
at 328 (“Crimes often have a set of surrounding circumstances which help shed
light on aspects such as motive and intent.”).
The evidence also satisfied the Bell factor of probativeness, which
requires the trial court to determine whether the evidence is sufficiently
probative of the defendant’s commission of the other alleged crimes, wrongs,
and acts, i.e. whether “the jury could reasonably conclude that the act[s]
occurred and that the defendant was the actor.” Davis v. Commonwealth, 147
S.W.3d 709, 724-25 (Ky. 2004). Here, body cam footage depicted the alleged
drugs and related paraphernalia present at the time of Elliott’s arrest.
Moreover, the jury could reasonably conclude from the evidence that Elliott
was a drug dealer, given his prior trafficking conviction. Thus, the evidence
also satisfied the requirement of probativeness.
Even where evidence of other crimes, wrongs, or acts satisfies the first
two Bell factors of relevance and probativeness, however, a trial court must
also consider whether “the tendency of the evidence [is] so strongly to lead the
jury into improper character inferences that that tendency ‘substantially
11 outweigh[s] [the evidence’s] probative value’ with regard to its proper uses.”
Jenkins v. Commonwealth, 496 S.W.3d 435, 457 (Ky. 2016) (quoting Bell, 875
S.W.2d at 890). Moreover, a trial court’s duty as evidentiary gatekeeper does
not end even if the trial court has found all three Bell factors satisfied. Rather,
the trial court must continue to carefully guard against a use of such evidence
beyond its permissible purposes resulting in undue prejudice to the defendant.
Brown v. Commonwealth, 983 S.W.2d 513, 516 (Ky. 1999) (“Even where
evidence of a prior crime has some relevance, the trial judge must use some
discretion in deciding to what extent the prior bad act may be utilized without
prejudice.”).
Here, while evidence of Elliott’s possession of drugs and related
paraphernalia and alleged occupation as a drug dealer was relevant and
probative, we nonetheless conclude the trial court abused its discretion in
allowing the repetitious and cumulative admission of that evidence far beyond
what was necessary to establish Elliott’s motive to unlawfully possess the
firearm. As we have repeatedly noted, admission of evidence of other crimes,
wrongs, or acts is “inherently and highly prejudicial to a defendant” because
“[i]t is very difficult for jurors to sift and separate such damaging information to
avoid the natural inclination to view it as evidence of a defendant’s criminal
disposition.” Bell, 875 S.W.2d at 890. Elliott was not on trial for either drug
possession or drug trafficking, but rather only for possession of a firearm by
convicted felon. While evidence that he possessed drugs and related
paraphernalia and was a drug dealer were relevant to establish his motive for
12 possessing the firearm, those facts could have been established without undue
prejudice by limited references during opening and closing statements and
limited testimonial proof. It was thus incumbent on the trial court to ensure
that the admission of such evidence was strictly limited only to argument and
proof necessary to establish that motive. Brown, 983 S.W.2d at 516.
However, the trial court admitted evidence of the presence of drugs and
Elliott’s alleged occupation as a drug dealer over Elliott’s objection at least
fifteen times over the course of the one-day trial. The prosecutor told the jury
twice during his opening statement that Elliott had been arrested in the
presence of alleged drugs. During the presentation of proof the jury then
watched body cam footage of the search showing the presence of those alleged
drugs and heard Agent Fox testify at least twice that he located drugs during
the search. In his closing statement, the prosecutor made at least five
references to the drugs in the room at the time of Elliott’s arrest and the related
search video. The prosecutor further stated that an innocent person would not
have been in the room with the drugs. Twice in closing the prosecutor referred
to the possession of firearms by drug dealers. During the penalty phase, the
prosecutor told the jury that Elliott was a “drug dealer in your community.”
This cumulative evidence far exceeded what was necessary for the
Commonwealth to show that Elliott’s possession of drugs and occupation as a
drug dealer established a motive for his unlawful possession of the firearm.
We have previously held that an excessive presentation of otherwise
relevant evidence of other crimes, wrongs, or acts may result in undue
13 prejudice to a defendant. Id. at 517 (“While the admission of evidence of
appellant’s [other crime] did not constitute error, the admission of excessive
evidence supporting that indictment was ‘unduly prejudicial and trial error.’”
(quoting Funk v. Commonwealth, 842 S.W.2d 476, 481 (Ky. 1992))); Chumbler
v. Commonwealth, 905 S.W.2d 488, 493 (Ky. 1995) (finding defendants were
denied a fair trial where “the Commonwealth presented evidence of [other acts]
far in excess of what was relevant to . . . establish motive.”). To be clear, a
limited use of evidence that Elliott possessed drugs and related paraphernalia
and was a drug dealer would have satisfied the third Bell factor balancing
probative value against prejudice, provided such use was limited to what was
necessary to establish motive. But, the Commonwealth’s cumulative
references to Elliott’s possession of drugs and related paraphernalia and
alleged occupation as a drug dealer transformed from an appropriately limited
presentation of evidence of motive to an urging of the jury to draw inferences of
criminal propensity based upon Elliott’s other crimes, wrongs, or acts. That is
the very evil KRE 404(b) aims to avoid. Graves, 384 S.W.3d at 150 (“[T]he only
relevance of the ‘other crimes’ evidence [lacking independent probative value] is
to suggest that the accused has the propensity to commit the offense under
review. That of course, is the very thing that KRE 404(b) prohibits.”). As such,
we conclude the trial court abused its discretion in allowing the presentation of
other crimes, wrongs, or acts evidence to far exceed what was necessary to
establish a motive for Elliott’s possession of the firearm, thereby allowing the
14 tendency of that evidence to lead the jury to improper character inferences to
substantially outweigh its probative value.
III. The trial court abused its discretion in admitting evidence of other pending charges against Elliott and its admonition did not cure the resulting prejudice.
The trial court also abused its discretion in allowing the Commonwealth
to admit evidence that Elliott faced other pending charges at the time of trial.
On six separate occasions during trial, the Commonwealth made reference to
the other pending charges against Elliott. Some of these references related to
an incident following Elliott’s arrest during which Elliott asked Agent Fox to
read the charges against him and Elliott’s subsequent statement that he was
keeping the gun for his uncle. While the evident—and proper—purpose of this
proof was to establish that Elliott knowingly possessed the firearm, the trial
court abused its discretion in failing to limit the proof to that purpose by
excluding reference to the other pending charges.
Evidence that Elliott faced other pending charges was not necessary to
provide context for law enforcement conduct or discovery of the charged
offense, nor was it so inextricably intertwined with the firearm charge that it
could not be excluded without serious adverse affect to the Commonwealth.
Thus, references to the other pending charges were not admissible under KRE
404(b)(2).
Evidence regarding the other pending charges also did not satisfy any of
the Bell factors and therefore also was not admissible under KRE 404(b)(1).
First, that Elliott faced other pending charges was wholly irrelevant to the issue
15 at trial, namely whether he was a convicted felon who had possessed a firearm.
Second, the evidence also was not probative of Elliott’s commission of the other
alleged crimes because the charges were pending rather than actual
convictions—indeed, Elliott was presumed innocent of those charges at the
time of trial. Third, Elliott faced undue prejudice as a result of the
Commonwealth informing the jury he had other pending charges. Thus, while
the trial court could properly admit Elliott’s statement that he was holding the
gun for his uncle, the admission of the additional evidence that he requested
and was read a list of “numerous” other charges was wholly unnecessary and
resulted in undue prejudice to Elliott. See Graves, 384 S.W.3d at 151 (holding
that admission of evidence of irrelevant and unproven charge was prejudicial).
This is particularly so given the reference to this evidence on at least six
separate occasions during the one-day trial. See id. (“[T]he prejudicial effect of
that evidence was compounded by the numerous references to it throughout
the trial . . . .”). As such, the trial court abused its discretion in allowing the
Commonwealth to present evidence of the irrelevant and unproven charges
against Elliott.
Finally, that the trial court admonished the jury to consider the other
charges only as context and background does not alter our conclusion. After
Agent Fox testified that Elliott faced “numerous” other charges, defense counsel
moved for a mistrial, which the trial court denied. The defense then requested
a limiting instruction informing the jury that Elliott was presumed innocent of
the other pending charges and that the jury should not consider those charges
16 in determining Elliott’s guilt or innocence on the firearm charge. The trial
court then provided the jury with the following admonition:
Sometimes evidence is admissible for some purposes and not others. Evidence in reference to other charges, other than the charge which is being tried here today which is possession of firearm by a convicted felon, that evidence has been admitted for the limited purpose of showing—if it does, and that’s a matter for you to determine—the surrounding circumstances pertaining to this case. Any other reference to other charges will be dealt with or handled in other proceedings. So that’s the instruction I’m giving.
An admonition is appropriate where “evidence which is admissible . . . for
one (1) purpose but not admissible . . . for another purpose is admitted.” KRE
105(a) (emphasis added). Here, the trial court admonished the jury that the
other pending charges were admissible for the limited purpose of showing the
surrounding circumstances of the case. As noted above, however, evidence of
the other pending charges was wholly unnecessary to show why law
enforcement focused on Elliott, how it discovered the firearm offense, or to
otherwise provide context or background for the charged offenses. Indeed, the
pending charges arose only after Elliott’s arrest, and therefore cannot logically
explain the context of his arrest or the charged offenses. As such, evidence of
those charges was not admissible under KRE 404(b)(2) for the purpose of
providing context and the trial court’s admonition to the jury to that effect itself
was erroneous and did not cure the prejudice resulting from admission of that
evidence.
IV. The trial court’s errors were not harmless.
Finally, we also conclude that a new trial is required because the trial
court’s admission of voluminous, repetitive, and cumulative evidence of other
17 crimes, wrongs, and acts was not harmless. Nonconstitutional evidentiary
errors “‘may be deemed harmless if the reviewing court can say with fair
assurance that the judgment was not substantially swayed by the error.’”
Mason v. Commonwealth, 559 S.W.3d 337, 339-40 (Ky. 2018) (quoting Murray
v. Commonwealth, 399 S.W.3d 398, 404 (Ky. 2013)). “The key inquiry is
‘whether the error itself had substantial influence [on the result]. If so, or if
one is left in grave doubt, the conviction cannot stand.’” Rucker v.
Commonwealth, 521 S.W.3d 562, 570 (Ky. 2017) (quoting Winstead v.
Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009)).
Here, the jury heard repeated improper and unnecessary references
throughout the one-day trial to Elliott’s possession of drugs and related
paraphernalia, to his alleged occupation as a drug dealer, and to other pending
charges against him. The Commonwealth zealously pursued the admission of
that evidence, which the trial court erroneously allowed. Notably, such
evidence of other crimes, wrongs, or acts “is presumptively prejudicial.”
Graves, 384 S.W.3d at 150. Though proof of Elliott’s guilt for possession of a
firearm by a convicted felon may have been strongly supported by body cam
footage showing him in a room with the firearm, it is also noteworthy that the
jury recommended the maximum sentence of twenty years allowable under the
law. Under such circumstances, we cannot say with fair assurance that the
repeated improper references to other crimes, wrongs, and acts did not
substantially sway the jury’s decision. See Rucker, 521 S.W.3d at 570 (finding
admission of other crimes, wrongs, or acts evidence not harmless, even though
18 proof of guilt was strong, given the lack of necessity for the evidence, its
overwhelming potential for prejudice, the fundamentally flawed proceedings
resulting from the Commonwealth’s overzealousness and the trial court’s error
in admitting the evidence, and the jury’s recommendation of the maximum
possible sentence). We therefore cannot find the error merely harmless and are
thus constrained to remand for a new trial.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the Logan Circuit
Court and remand for a new trial consistent with this opinion.
All sitting. Bisig, Conley, Keller, Lambert, and Thompson, JJ., concur.
Vanmeter, C.J.; Nickell, J., concur in result only.
19 COUNSEL FOR APPELLANT:
Karen Shuff Maurer Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron Attorney General of Kentucky
Kristin Leigh Conder Assistant Attorney General